U.S. v. Cardenas, No. 92-8660

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore REYNALDO G. GARZA, KING and DeMOSS; KING
Citation9 F.3d 1139
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rita Ann CARDENAS and Shamsideen Abiodun Lawal, Defendants-Appellants.
Docket NumberNo. 92-8660
Decision Date09 December 1993

Page 1139

9 F.3d 1139
UNITED STATES of America, Plaintiff-Appellee,
v.
Rita Ann CARDENAS and Shamsideen Abiodun Lawal, Defendants-Appellants.
No. 92-8660.
United States Court of Appeals,
Fifth Circuit.
Dec. 9, 1993.
Rehearing and Suggestion for Rehearing
En Banc Denied Jan. 27, 1994.

Page 1144

Lucien B. Campbell, Federal Public Defender, Adrienne Urrutia, Asst. Federal Public Defender, San Antonio, TX, for Cardenas.

Thomas Stanton, El Paso, TX (Court-appointed), for Lawal.

Mark R. Stelmach, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, U.S. Atty., San Antonio, TX, for U.S.

Appeals from the United States District Court for the Western District of Texas

Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.

KING, Circuit Judge:

Rita Ann Cardenas (Cardenas) and Shamsideen Abiodun Lawal (Lawal) were convicted in a non-jury trial of conspiracy to import heroin into the United States from Mexico, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 963 (Count One); conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (Count Two); importation of heroin, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) (Count Three); and possession of heroin with intent to distribute, in violation of Sec. 841(a)(1) (Count Four). Cardenas was sentenced to 121 months imprisonment on each count, to run concurrently, and a five-year term of supervised release. She was also ordered to pay a special assessment of $200. Lawal was sentenced to 210 months imprisonment on each count, to run concurrently, and a five-year term of supervised release. He was also ordered to pay a special assessment of $200.

Each defendant appeals his or her conviction and sentence. We affirm the district court's judgments of conviction and sentence.

I. BACKGROUND

A. Factual Background

Shortly before noon on August 7, 1992, Quirino Paez-Guerrero, a taxi driver in Juarez, Mexico, picked up Cardenas and Lawal in front of the San Carlos Hotel in Juarez to take them across the border to El Paso, Texas. Following United States Customs procedures for transporting passengers across the border, Paez-Guerrero discharged his passengers in front of the pedestrian border checkpoint before proceeding through the vehicle checkpoint and waiting for them on the United States side of the border.

Immigration Inspector Robert Alvarado passed Cardenas through a pedestrian lane without detention after questioning her and reviewing her United States passport. Approximately five minutes later, Lawal attempted to pass through another pedestrian lane. Senior Customs Inspector Arnulfo Valdez asked Lawal several routine entrance questions to which Lawal responded with "very evasive" answers. Lawal presented Valdez with his resident alien card, which showed that he was a Nigerian citizen. When Valdez then asked Lawal for his passport, airline tickets, and itinerary, Lawal replied that he had only been in Juarez for a day and that the requested items were in his hotel room in El Paso. Throughout Valdez's questioning of Lawal, Lawal appeared very nervous and "showed symptoms of abnormal behavior."

Valdez then took Lawal to the Customs "Head House," the customs inspection area, approximately twenty yards from the pedestrian

Page 1145

lanes. In the waiting room, Valdez initiated a routine patdown search for weapons on Lawal. Immigration Inspector Lorenzo Ramirez and Supervising Inspector Jose Soledad were nearby in the doorway. Valdez discovered in Lawal's pockets an opened box of razor blades, $1044 in cash, part of a roll of transparent tape, and a key to Room 17 in the San Carlos Motel in Juarez. He also discovered in Lawal's wallet a photograph of a woman later identified as Cardenas. When Lawal attempted to grab the razor blades, inspectors had to subdue him. Inspector Valdez testified that based on his past experience, the presence of the razor blades, as instruments commonly used in the cutting of heroin and cocaine, raised his suspicion that Lawal was involved in narcotics trafficking.

Valdez then initiated a strip search of Lawal. When Lawal was removing his shoes, a passport fell out of his right shoe and onto the floor. Lawal tried to prevent discovery of the passport by covering it with his foot; he dragged his feet with the passport across the room so that the inspectors had to "kinda push him" away to recover the passport. The passport was a United States passport issued to Cardenas, which contained visa stamps for entry into the Philippines, a country the inspectors recognized as being "a high source country for narcotics." Recalling from experience that drug smugglers often travel in pairs and split up as they go through customs to avoid detection, Valdez discontinued the search of Lawal to brief Soledad, his supervisor, of his suspicions--i.e., that Lawal and Cardenas were partners in a smuggling scheme and that Cardenas had recently crossed the border and was somewhere nearby. Soledad and Inspector Frasas then initiated a search for Cardenas.

While the search for Cardenas was proceeding, the inspectors at the Head House continued their investigation of Lawal. A drug-sniffing dog alerted to the presence of narcotics on the cash discovered in Lawal's pocket.

Within approximately five minutes of initiating the search for Cardenas, Soledad spotted her next to a wall near a store, at most a block away from the border crossing. Soledad identified himself, and Cardenas, responding to Soledad's questions, confirmed that she was Cardenas. Soledad and Frasas then took Cardenas back to the Head House.

After Cardenas arrived at the Head House, Inspector Edna Hasan searched Cardenas' purse and found airline tickets and boarding passes, hotel receipts, Filipino and Dutch currency, and a United States passport in Cardenas' name. Cardenas appeared unusually nervous throughout this search. When Cardenas then asked what was wrong, she was informed that she was suspected of being a narcotics courier. After Cardenas was told that carrying drugs internally was very dangerous, Cardenas began to cry and pointed to her waist, stating that she was carrying drugs "here."

Hasan and Inspector Sylvia Page then searched Cardenas and found five plastic transparent bags containing heroin. These bags had been held in place around Cardenas' waist by a strong Lycra girdle and tape, the same kind of tape that Lawal was carrying. Hasan stated that Cardenas would have required assistance to put into place and secure the heroin onto her body as it had been positioned and secured. 1 Another bag of heroin was found in Cardenas' left sock.

The gross weight of the heroin found on Cardenas' person was 5.5 pounds. Customs Special Agent Ricky Hearn testified that the heroin was of 87 percent purity and that heroin of this amount and purity was "distribution" heroin, not "user" heroin--which is of less than 10 percent purity. Hearn also stated that the wholesale value of the heroin was more than "half a million dollars" and that once the heroin was cut up and had its purity percentage lowered, its value would significantly increase.

Cardenas was informed of her Miranda 2 rights and then signed a form indicating that

Page 1146

she understood her rights and that she wished to waive them and make a statement. Cardenas told the inspectors that she and Lawal were involved in a scheme to import narcotics into the United States. She stated that a woman named "Lucy" from Houston offered her $15,000 to pick up some narcotics in the Philippines and bring them into the United States. She said that after she had gone to the Philippines and received a quantity of drugs there from an unknown man, she traveled to Amsterdam, in the Netherlands, and then to Mexico City, where she first met Lawal in the airport. She also explained that the picture of herself found in Lawal's wallet was a picture she had given to "Lucy" so that "Lucy" could give it--for identification purposes--to the person who was to meet Cardenas at the Mexico City airport. Together, she said, she and Lawal went to the San Carlos Hotel in Juarez, where she stayed while Lawal went out to "buy some stuff." She stated that he returned to the room with a girdle, razor blades, tape, and plastic baggies. She explained that after Lawal had packaged the drugs into the baggies and secured the heroin in Cardenas' girdle, they exited the hotel, got into a taxi, and proceeded to the border crossing to enter into the United States. She also stated that more drugs were in the hotel room in Juarez.

After being informed of his Miranda rights, Lawal told inspectors that he had found Cardenas' passport on the ground near the border crossing. He stated that he was carrying it inside of his shoe to avoid being found with someone else's passport and that he intended to turn it in to authorities. He first explained that he was traveling alone, but he stated later that his wife and infant son were waiting for him at the Holiday Inn Hotel in downtown El Paso. Furthermore, he initially denied ever seeing Cardenas, but later admitted riding in the taxi with her from the hotel to the border crossing. He also denied knowledge of either the presence of Cardenas' picture in his wallet or the heroin confiscated from Cardenas' person.

B. Procedural History

On August 19, 1992, Lawal and Cardenas were indicted for conspiracy to import heroin into the United States from Mexico, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 963 (Count One); conspiracy to possess heroin with the intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (Count Two); importation of heroin, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) (Count Three); and possession of heroin with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Each defendant pleaded not guilty to all of the charges.

Cardenas then moved to suppress her confession and the drugs seized from her person on the ground...

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165 practice notes
  • United States v. Medina, EP-19-CR-3333-PRM
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 20, 2020
    ...searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions. United States v. Cardenas , 9 F.3d 1139, 1147 (5th Cir. 1993) (citing Coolidge v. New Hampshire , 403 U.S. 443, 454–55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ). In addition, a warrant is ......
  • U.S. v. Burgos, Nos. 93-5899
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 23, 1996
    ...and Gonzales separated once at the terminal, yet another inculpating feature of conspiratorial conduct, see United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.1993), cert. denied, 511 U.S. 1134, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994) (noting, in a drug importation conspiracy case, that t......
  • U.S. v. Zertuche-Tobias, Criminal No. H-96-181.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 3, 1996
    ...fall within a few narrowly defined exceptions." United States v. Ho, 94 F.3d 932, 935 (5th Cir.1996) (citing United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993), cert. denied, 511 U.S. 1134, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994)).44 In Page 817 general, any restraint on a person am......
  • U.S. v. Fuchs, No. 05-10426.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 17, 2006
    ...that sustains the conviction is circumstantial rather than direct." Id. (citing Burton, 126 F.3d at 670; United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir.1993); United States v. Bell, 678 F.2d 547, 549 n. 3 (Former 5th B. Continuing Criminal Enterprise Count two charged Fuchs with CCE ......
  • Request a trial to view additional results
164 cases
  • United States v. Medina, EP-19-CR-3333-PRM
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 20, 2020
    ...searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions. United States v. Cardenas , 9 F.3d 1139, 1147 (5th Cir. 1993) (citing Coolidge v. New Hampshire , 403 U.S. 443, 454–55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ). In addition, a warrant is ......
  • U.S. v. Burgos, Nos. 93-5899
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 23, 1996
    ...and Gonzales separated once at the terminal, yet another inculpating feature of conspiratorial conduct, see United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.1993), cert. denied, 511 U.S. 1134, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994) (noting, in a drug importation conspiracy case, that t......
  • U.S. v. Zertuche-Tobias, Criminal No. H-96-181.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 3, 1996
    ...fall within a few narrowly defined exceptions." United States v. Ho, 94 F.3d 932, 935 (5th Cir.1996) (citing United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993), cert. denied, 511 U.S. 1134, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994)).44 In Page 817 general, any restraint on a person am......
  • U.S. v. Fuchs, No. 05-10426.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 17, 2006
    ...that sustains the conviction is circumstantial rather than direct." Id. (citing Burton, 126 F.3d at 670; United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir.1993); United States v. Bell, 678 F.2d 547, 549 n. 3 (Former 5th B. Continuing Criminal Enterprise Count two charged Fuchs with CCE ......
  • Request a trial to view additional results
1 books & journal articles
  • FEDERAL CRIMINAL CONSPIRACY
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...(5th Cir. 2006)(noting that knowledge and participation “may be inferred from circumstantial evidence” (quoting United Statesv. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993))); see also United States v. Slagg, 651 F.3d 832, 840 (8th Cir.2011) (“An agreement to join a conspiracy need not be ex......

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